Pharmacy Not Liable for Refusal to Fill Rx

Larry M. Simonsmeier, JD, RPh

Published Online: Tuesday, July 1, 2003

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Issue of the Case: A Missouri Court of Appeals was asked, in this month?s case, whether a pharmacist was required to call a physician for a prescription when a patient he had never seen before suffered an asthma attack.

Facts of the Case: The plaintiff had a history of asthma, for which she used an albuterol inhaler. When suffering an asthmatic attack, she discovered that she was out of her medication. The plaintiff went to the defendant pharmacy and requested that the pharmacist either provide an inhaler or call the doctor to verify that she was "entitled" to receive the drug. The plaintiff did not have a prescription. For reasons not expand, the pharmacist did not make the call and refused to give the plaintiff the albuter-ol. As a result, she was taken by ambulance to the hospital for treatment. The plaintiff filed this lawsuit, claiming that she suffered additional breathing problems caused by the delay in treatment when the pharmacist refused to assist her.

The Court?s Ruling: The trial court ruled that a pharmacist has no duty to supply an Rx-only medication without a prescription, nor is there a duty to call a physician for authorization when there is no prescription on file in the pharmacy. The appellate court agreed.

The Court?s Reasoning: The plaintiff alleged that the pharmacist was negligent for failing to give her an albuterol inhaler for failing to call the physician to get a prescription. In order to prove negligence, the plantiff was required to show that the pharmacist had a legal duty t protect her from injury.

The court noted that a mere request for assistance does not create a legal duty to help another. Although there may be a moral or humane duty to aid a person in distress or danger, in the absense of some special relationship between the parties the law generally imposes no legal duty to do so.

It was concluded that the relationship between the pharmacist and the plaintiff was, at best, one of a pharmacist to a potential customer. State law defined the practice of pharmacy to include the "dispensing of drugs pursuant to prescription orders." This did not include calling a doctor to see if a potential customer, who does not have a written prescription, is entitled to a medication when he or she requests a drug due to an immediate need.

The court went on to observe that a pharmacist is not a medical doctor and does not prescribe, but rather dispenses prescriptions according to the directions of those authorized to prescribe. Although federal and state laws require a pharmacist to consult with patients about matters that will enhance or optimize drug therapy, these duties to counsel patients arise only upon receipt of a prescription?not before.

The court held that the pharmacist was under no legal duty to provide a prescription medication, call a doctor, or consult with the plaintiff because she had never filled a prescription at his pharmacy before and did not present him with a prescription drug order.

Larry M. Simonsmeier is Emeritus Professor of Pharmacy Law at Washington State University College of Pharmacy.